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HomeMy WebLinkAboutBRISTOL LIQUOR AND MARKET-2008INSURANCE NOT REQUIRED WORK MAY PROCEED CLERK OF COUNCIL A-2008-167 DATE: Cc ~ ~G' ~ ACQUISITION SETTLEMENT AGREEMENT o : Ewa ~E S~ ~~ca~ C~nd~ G~,,,~~Th1S Acquisition Settlement Agreement ("ASA") is entered into on ~,A,~,p _ 5 , 2008 between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("City" or "Licensor"), and Parks Family Liquor Inc., A California corporation dba Bristol Liquor & Market ("Tenant or "Licensee"). City and Tenant may collectively be referred to in this ASA as the "Parties". RECITALS A. City is the fee owner of 323 South Bristol Street, Santa Ana, California ("Property"). B. Tenant operates a business on the Property commonly known as Bristol Liquor & Market, and is the occupant of the real property and improvements located on the Property, more specifically described and depicted in Exhibit "A", Legal Description, attached hereto. C. City and Tenant desire to enter into aNon-Exclusive License Agreement ("License") for Tenant's occupation of the Property, a copy of which is attached hereto as Exhibit "B". D. The Property is located within the area of the Bristol Street Corridor Street Widening Project from Pine Street to McFadden Avenue ("Project") and City previously acquired the Property for a public use. E. The Parties' rights and obligations with regard to Tenant's entitlement to relocation and other displacement benefits are in dispute. The Parties desire to define their respective rights and obligations upon the terms and conditions as hereinafter set forth, and to resolve any and all disputes with regard to any and all of the compensation and/or other entitlements to which Tenant is now or in the future entitled as a result of the acquisition of the Property by City. THEREFORE, in consideration of the promises, covenants and agreements hereinafter set forth, and subject to the terms, conditions and provisions of this ASA, the Parties agree as follows: 1. Consideration A. City shall pay Tenant in accordance with the disbursement schedule referenced in Section 1(B) and 1(C), below, the total sum of FIVE HUNDRED SIXTY FIVE THOUSAND AND NO/100 DOLLARS ($565,000.00) as full compensation for relocation assistance and any and all related past, present or future costs, expenses, payments, claims or benefits to which Tenant is or may be entitled as a result of City's acquisition of the Property for the Project, including any and all loss of business goodwill, leasehold interests, security deposit(s), personal property, improvements pertaining to realty, bonus value, and/or severance damages. Acquisition Settlement Agreement lofl3 Tenant's Initials B. Upon execution of this ASA by all Parties, City will process an initial payment to Tenant in the amount of FOUR HUNDRED NINETY THOUSAND AND NO/100 DOLLARS ($490,000.00). C. City will process a second payment to Tenant in the amount of SEVENTY FIVE THOUSAND AND NO/100 DOLLARS ($75,000.00) upon satisfactory evidence to City that Tenant has satisfied the following conditions: Tenant has (1) vacated the Property, (2) executed and delivered to City a Certificate of Abandonment of the Property, (3) surrendered to City or its designated Agents all sets of keys to the Property, (4) confirmed in writing to City that any and all hazardous materials have been removed from the Property in accordance with all applicable federal and state laws, ordinances and/or regulations, and (5) the conditions stated in Section 2 of this ASA have been satisfied as determined by City in its sole and absolute discretion. Each payment referenced in this Section shall be subject to offsets as described in Sections 2(A), 2(B) and 2(C), below, and Section 4(D) of the License entered into by the Parties. D. Tenant's receipt of full payment of the consideration referenced in Sections 1(A), 1(B) and 1(C), above, shall constitute full satisfaction of any and all of City's obligations to compensate Tenant for City's acquisition of the Property for the Project, including, but not limited to, compensation for any and all past, present or future costs, expenses, payments, claims or benefits to which Tenant is or may be entitled, and any and all loss of business goodwill, leasehold interests, security deposit(s), personal property, improvements pertaining to realty, bonus value, and/or severance damages. E. As a matter of record, the compensation paid to Tenant in accordance with this ASA shall be apportioned in the following amounts: Relocation benefits shall equal TWENTY THOUSAND AND NO/100 DOLLARS ($20,000.00); Payment for any and all past, present or future costs, expenses, payments, claims or benefits to which Tenant is or may be entitled, including any and all loss of business goodwill, leasehold interests, security deposit(s), personal property, improvements pertaining to realty, bonus value, and/or severance damages shall equal FIVE HUNDRED FOURTY FIVE THOUSAND AND NO/100 DOLLARS ($545,000.00). 2. Failure to Vacate From the existin¢ building and other improvements on the Pro er A. Tenant shall vacate the Property not later than October 31, 2008 ("Vacate Date"). Tenant shall pay to City of a rental fee ("Daily Rental") of TWO HUNDRED AND NO/100 DOLLARS ($200.00) for each and every day Tenant remains in possession of the Property after the Vacate Date, unless a written request for an extension, not to exceed sixty (60) days, has been submitted to and approved by the City prior to the Vacate Date. Such request will not be unreasonably denied. Any Daily Rental charged to Tenant shall be deducted as an offset from the final payment to Tenant as described in section 1(C) above. B. As of the Vacate Date, if Tenant has not removed all of its moveable personal Acquisition Settlement Agreement 2of13 Tenant's Initials property from the existing building(s) and other improvements on the Property, Tenant authorizes City to remove said items at Tenant's sole cost and expense, which cost and expense shall be deducted as an offset from the final payment due Tenant as described in Section 1(C), above. C. Tenant shall pay monthly rent ("Monthly Rental") to City in the amount of ONE THOUSAND TWO HUNDRED AND NO/100 DOLLARS ($1,200.00) beginning August 1, 2007 through the Vacate Date. Any unpaid Monthly Rental owed by Tenant to City shall be deducted from the final payment described in Section 1(C) above. Notwithstanding the foregoing, upon execution by Tenant of this ASA and the Non-Exclusive License Agreement attached hereto as Exhibit B, City agrees to abate Tenant's Monthly Rental through the Vacate Date. 3. Release Tenant agrees to release, indemnify, defend and hold harmless City, its officers, directors, Agencies, employees, and authorized agents (collectively "Agents"), from any and all claims, liabilities, costs, damages or causes of action which Tenant now or in the future may have against City arising from the acquisition of the Property for the Project, including, but not limited to, any and all relocation assistance and other relocation and/or displacement benefits to which Tenant is now or may in the future be entitled to, including compensation for any and all past, present or future costs, expenses, payments, claims or benefits and any and all loss of business goodwill, leasehold interests, security deposit(s), personal property, improvements pertaining to realty, bonus value, and/or severance damages, and any and all other damages to which Tenant is or may be entitled to as a result of City's acquisition of the Property for the Project. Tenant agrees to indemnify, defend and hold harmless City from and against any and all claims, demands, liabilities, losses, judgments, expenses and attorney's fees resulting from the breach by Tenant of any provision contained in this ASA. 4. Attorney's Fees In the event of litigation relating to this ASA, the prevailing party shall be entitled to reasonable attorneys' fees and costs. 5. Entire Agreement This ASA contains the entire Agreement of the Parties hereto pertaining to the subject matter discussed herein, and supersedes any prior written or oral agreements between them concerning the subject matter contained herein. This ASA may be modified only by a writing executed by the Parties hereto. 6. Partiallnvalidity In the event that any term, covenant, condition or provision of this ASA shall be held by a court of competent jurisdiction to be invalid or against public policy, the remaining provisions shall continue in full force and effect. Acquisition Settlement Agreement 3of13 Tenant's Initials 7. Waiver The provisions of this ASA may be waived, altered, amended or repealed, in whole or in part, but only upon the written consent of all Parties to this ASA. The waiver by one party of the duty of performance by the other Party of any provision in this ASA shall not invalidate this ASA, nor shall it be considered a waiver of any rights or remedies available to the non- breaching Party of this ASA. 8. Headines The headings, subheadings and numbering of the different Sections of this ASA are inserted for convenience only and shall not be considered for any purpose in construing this ASA. 9. Governine Law The rights and obligations of the Parties hereto shall be construed and enforced in accordance with, and governed by, the laws of the State of California. 10. Successors In Interest Subject to any restrictions against assignment contained herein, and to any legal limitations on the power of the signatories to bind non-signatories to this ASA, this ASA shall inure to the benefit of, and shall be binding upon, the assigns, successors-in-interest, personal representatives, executors, estate, heirs, legatees, Agents and related entities of each of the Parties hereto. 11. Necessary Acts Each Party to this ASA agrees to perform any further acts and execute and deliver any further documents that may be reasonably necessary to carry out the provisions of this ASA. 12. Advice Of Counsel Each Party hereto, by its execution of this ASA, represents to every other Party that it has reviewed each term of this ASA with its counsel and hereafter no Party shall deny the validity of this ASA on the ground that the Party did not have advice of counsel. Each Party to this ASA has had the opportunity to receive independent legal advice with respect to entering into and being bound by this ASA and with respect to the meaning of California Civil Code §142. 13. Parties Have Not Transferred Rieht Or Claims The Parties hereto each represent and warrant to the other Party that they have not assigned, transferred or sublet to any third party any of the rights, claims, causes of action or items to be released or transferred which they are obligated to transfer or to release as part of this ASA. Acquisition Settlement Agreement 4of13 Tenants Ini[ials 14. Authority To Execute This Aereement Each Party executing this ASA represents that it is authorized to execute this ASA. Each Party executing this ASA on behalf of an entity, other than an individual executing this ASA on his or her own behalf, represents that he or she is authorized to execute this ASA on behalf of said entity. 15. Construction Each Party has cooperated in the drafting and preparation of this ASA. In any construction or interpretation to be made of this ASA, or of any of its terms, conditions and/or provisions, the same shall not be construed against any party. 16. Notices All notices, requests, demands and other communications required or permitted to be given under this ASA shall be in writing and shall either be delivered in writing personally or be sent by telegram or by regular or certified first class mail, postage prepaid, deposited in the United States mail, and properly addressed to the Party at its address as set forth below, or at any other address that such Party may designate by written notice to the other Party: To City: City of Santa Ana Public Works Agency 20 Civic Center Plaza, M-36 Santa Ana, CA 92702 Attention: Souri Amirani To Tenant: Parks Family Liquor, Inc. dba Bristol Liquor & Market C/O Jong Yuk Park 323 S. Bristol Street Santa Ana, California 92703 To Tenant: Post-move Acquisition Settlement Agreement Sofl3 Tenant's Initials IN WITNESS WHEREOF, the Parties have executed this Acquisition Settlement Agreement as of the date first written above. TENANT: Parks Family Liquor Inc. California corporation dbu Bristol Liquor & Mazket gy; Date: o ~ - ~ , 2008 uk Pa CITY: CITY OF N A A /~ By: ~ h+""^'~~ Date: 0 6 !G , 2008 David N. Ream City Manager ATTEST: ~ ~~ By: ~ ~ ~`~'`"~`'' ~ Date: , 2008 Patricia E: Healy Clerk of the Council APPROVED AS O FORM: By: Date , 2008 Sando M naging Senior Assistant City Attorney Acquisition Settlement Agreement 6of13 Tenant's Initials EXHIBIT "A" LEGAL DESCRIPTION All that certain real property situated in the County of Orange, State of California, described as follows: Lots 15, 16 and 17 in Block °C" of Tract No. 610, in the City of Santa Ana, County of Orange, State of California, as per map recorded in Book 19, Page 12 of Miscellaneous Maps, in the Office of the County Recorder of said County. Except the West 10 feet thereof as conveyed to the City of Santa Ana, a Municipal Corporation, by deeds recorded July 9, 1951, in Baok 2102, Page 520, of Official Records; September 12, 1951, in Book 2228, Page 522, of Official Records; and June 13, 1951, in Book 2200, Page 341, of Official Records. Assessor`s Parcel Number: 008-231-23; 008-233-29 Acquisition Settlement Agreement 7of13 Tenant's Initials EXHIBIT "B" NON-EXCLUSIVE LICENSE AGREEMENT THIS NON-EXCLUSIVE LICENSE AGREEMENT ("License") is entered into on 2008, between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of Califomia (hereinafter "City" or "Licensor") and Parks Family Liquor, Inc., a Califomia corporation dba Bristol Liquor & Market (hereinafter "Licensee"). Licensor and Licensee may collectively be referred to herein as the "Parties". RECITALS A. Licensor owns the property located at 323 S. Bristol Street, Santa Ana, California (hereinafter "License Area"). B. Licensee operates a business on the License Area commonly known as Bristol Liquor & Market and is the occupant of the real property and improvements located on the Licensed Area. C. Licensor desires to grant to Licensee a personal, non-exclusive, revocable license for Licensee's use of the License Area. D. Licensee represents that it desires said License in order to use the License Area for the purpose of operating a retail liquor store business. E. Licensor and Licensee desire to enter into an Acquisition Settlement Agreement ("ASA") pertaining to the disposition of Licensee's leasehold interests in the License Area. 1. GRANT OF LICENSE A. Licensor grants to Licensee a personal, non-exclusive, revocable license ("License") to use the License Area to operate a retail liquor store business. B. Licensee may not use the License Area for any other purpose or business other than in accordance with Section 1(A), above, without first obtaining Licensor's prior written consent. C. Licensor and Licensee agree that Licensor shall not be held responsible during the Term of this License for the loss of, or damage to, any personal property left on, in, or around the License Area, or for improvements made by Licensee in or to the License Area. D. This License is made subject to the prior and continuing right of Licensor to use the License Area as a public right-of--way. Acquisition Settlement Agreement 8of13 Tenant's Initials 2. CONSIDERATION Commencing August 1, 2007, and continuing without offset through October 31, 2008 ("Vacate Date"), Licensee shall pay to Licensor a monthly rental ("Monthly Rental") in the amount of ONE THOUSAND TWO HUNDRED AND NO/100 DOLLARS ($1,200.00) for use of the License Area. Monthly Rental shall be paid or abated in accordance with the provisions stated in Section 2(C) of the ASA entered into by the Parties. 3. DUTIES OF LICENSEE A. Licensee agrees to comply with any reasonable requests or mandates by Licensor related to the use of the License Area in accordance with Section 1 of this License. B. Licensee shall maintain the License Area in a neat, clean, sanitary and safe condition, to the satisfaction of Licensor, at the sole cost and expense of the Licensee. The License Area shall be maintained in a manner consistent with community standards which will prevent waste and uphold the value of the Property in accordance with this License; the Santa Ana Municipal Code; and all other applicable local, state and federal statutes, rules, regulations and standards. C. Licensee shall be responsible for the payment of all chazges or fees in connection with Utility Services provided to the License Area. "Utility Services" shall include, inter alia, natural gas, water, phone, electricity and sewer. D. Licensee shall not record, hypothecate, assign or attempt to record, hypothecate or assign this personal License. Any attempt by Licensee to record, hypothecate or assign this License shall automatically terminate this License and render it null and void. 4. REVOCATION OF LICENSE /TERMINATION OF OCCUPANCY A. This License shall automatically terminate on October 31, 2008. B. This License may be terminated by either party with 30 days written notice to the other party. Licensor may revoke this License, at will, in its sole and absolute discretion, upon thirty (30) days written notice to Licensee. C. Licensee accepts the License Area in an "as is" condition, and upon termination or revocation of this License. Licensee shall, at its own cost and expense, remove all personal property and improvements installed by Licensee and shall surrender possession of the License Area to the Licensor. D. In the event Licensee fails, neglects, or refuses to remove said personal property and/or improvements and restore the License Area, such removal and restorations may be performed by Licensor, in its sole discretion, at the expense of Licensee, which expense(s) shall be deducted as an offset from the payment referred to in Section I (C) of the ASA entered into by the Parties. Acquisition Settlement Agreement 9of13 Tenant's Initials 5. NOTICES Any notice to be given by either party shall be deemed properly served when deposited with the United States Postal Service, or other acceptable mailing service, postage prepaid, accurately addressed to the addresses below: TO LICENSOR: City of Santa Ana -Public Works Agency 20 Civic Center Plaza P.O. Box 1988 (M-36) Santa Ana, CA 92702 Attn: Souri Amirani TO LICENSEE: Bristol Liquor & Market 323 S. Bristol Street Santa Ana, CA 92703 TO LICENSEE -POST MOVE 6. INSURANCE A. Licensee shall maintain commercial general liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence covering the License Area. Such insurance shall: (1) name the City of Santa Ana, its officers, agents, employees and volunteers as additional insureds, (2) be primary with respect to insurance or self-insurance programs maintained by the Licensor, and (3) contain standard separation of insureds provisions. B. Licensee shall, prior to and as a condition of exercising any rights under this License, (i) furnish properly executed certificates of insurance to the Licensor prior to exercising its rights under this License, which certificates shall clearly reflect that Bristol Liquor provides evidence of all insurance coverages required above and provide that such insurance shall not be materially changed or terminated except with 30 days prior written notice to the Licensor; (ii) attach a completed and signed copy of the Licensor's "Additional Insured Endorsement" form, a copy of which is attached hereto as Exhibit "C", to the certificates of insurance noted above; (iii) maintain such insurance from the commencement date of this License until the termination date Acquisition Settlement Agreement ]0 of 13 Tenant's Initials of this License; and (iv) replace such certificates of insurance for policies expiring prior to the termination of this License. 7. RELEASE AND INDEMNITY Licensee unconditionally agrees to release, indemnify, defend and hold harmless City, its officers, directors, Agencies, employees, and authorized agents (collectively "Agents"), from and against any and all claims, liabilities, costs, damages or causes of action for injuries, death to any person or damage to personal or real property, including the property of employees, volunteers, officers or agents of Licensor or Licensee, and shall indemnify, defend and hold harmless Licensor and Licensor's Agents from any and all claims, demands, suits, actions or proceedings of any kind, and all costs and expenses, including, reasonable attorneys' fees, settlements or judgments, arising out of the construction, reconstruction, maintenance, presence, operation, use, removal or state of repair of the License Area. S. GOVERNING LAW This License shall be governed by and construed in accordance with the laws of the State of California. 9. ENTIRE AGREEMENT This License, together with all attachments hereto, and the ASA entered into by the Parties, constitutes the entire understanding and agreement of the Parties. This License and the ASA entered into by the Parties supersedes any and all other agreements, either oral or written, between the Parties hereto with respect to the terms and conditions set forth in this License and contains all the covenants and agreements between the Parties. Each Party to this License acknowledges that no representation, inducements, promises or agreements, made orally or otherwise, have been made by any party, or anyone acting on behalf of any party, with respect to such services or terms and conditions which are not embodied herein, and that no amendment hereto shall be effective unless set forth in writing, approved by the Licensor and Licensee. 10. INDEPENDENT CONTRACTOR It is understood and agreed that Licensee, in the performance of this License, will be acting in a wholly independent capacity and not as agents, employees, partners, or joint venturers of the Licensor. This License does not create a tenancy of any nature whatsoever between the Licensor and Licensee. 11. ASSIGNMENT BY LICENSEE PROHIBITED In no event shall Licensee assign or transfer any of the rights conferred herein without the prior written consent of the Licensor. 12. ATTORNEY FEES AND COSTS Acquisition Settlement Agreement 11 of 13 Tenant's Initials In the event that any action is instituted to enforce payment or performance of the terms and conditions of this License, the Parties agree that the prevailing party shall be reimbursed by the other party for all costs and attorneys' fees incurred by the prevailing party in such action. 13. CONFLICT OF INTEREST No member, official or employee of the City shall have any personal interest, direct or indirect, in this License, nor shall any member, official or employee of City participate in any decision relating to this License which affects his/her personal interests or the interests of any corporation, partnership or association in which he/she is directly or indirectly interested. IN WITNESS WHEREOF, the Parties have executed this License as of the date first written above. LICENSEE: Parks Family Liquor Inc., a t rnia corporation dba Bristol Liquor & Market By; i Date: a'~ " ~ , 2008 ng u ~/ ~" Tax ID No.: ~ a` j S T j 3 ~ t.(' LICENSO IT F SANTA ANA: By; ~•~ Date: y G ~p 5 ~p ~ , 2008 David N. Ream City Manager ATTES ~, By: Patricia E. Iiealy Clerk of the Council Date: ~ d~ , 2008 APPROVED AS TO FORM: ''}} ~~ By; Date o~~- , 2008 se Sandova - anaging Senior Assistant City Attorney Acquisition Settlement Agreement 12 of 13 Tenant's Initials EXHIBIT A ADDITIONAL INSURED ENDORSEMENT Insurance Company ~) S1 pPFS l'i~4iq f ~ ~~ G~'1~ This endorsement modifies such insurance as is afforded by the provisions of Policy # ~W zM t/~o 10 ~fS '~~3 relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92702;, their officers, employees, agents and volunteers are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be canceled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza (M-36), Santa Ana, California 92702. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective ,this endorsement form as a part of Policy# ~1~-/yll/~IaraSg~DU~ Issued to Named Insured Countersigned by Authorized Representative Acquisition Settlement Agreement 13 of 13